People v. Cabada CA2/6

Filed 1/17/23 P. v. Cabada CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B315418 (Super. Ct. No. 2020032612) Plaintiff and Respondent, (Ventura County)

v.

JOSE MANUEL CABADA,

Defendant and Appellant.

Jose Manuel Cabada appeals from the judgment entered after a jury convicted him of second degree robbery, among other offenses. (Pen. Code, § 211.)1 He contends the evidence is insufficient to support his robbery conviction. He also contends that he is entitled to remand for resentencing in light of recently enacted Senate Bill No. 567. We affirm.

All further statutory references are to the Penal Code 1 unless otherwise indicated.

Procedural Background In May 2020, appellant engaged in a series of offenses that involved stealing a car, robbing a convenience store, and leading police on a high-speed chase that ended after appellant crashed the stolen car into a median on the 101 freeway. The information charged appellant with three felony counts including second degree robbery (§ 211, count 1), evading an officer (Veh. Code, § 2800.2, subd. (a), count 2), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 3). Count 1 alleged a five-year sentencing enhancement for a prior serious felony conviction. (§ 667, subd. (a)(1).) All three counts alleged appellant had sustained a prior strike, a serious or violent felony conviction, and at least two prior felony convictions, which made him presumptively ineligible for probation and required that the imposed sentence be doubled and served in state prison. (§§ 667, subds. (c)(1) & (e)(1), 1170, subd. (h)(3), 1170.12, subds. (a)(1) & (c)(1), 1203, subd. (e)(4).) The trial court sentenced appellant to an aggregate term of 12 years eight months in state prison. On count 1, robbery, the trial court imposed the upper term of five years doubled as a second strike for a total of 10 years. On count 2, evading an officer, the trial court imposed one-third the middle term doubled for a total of 16 months, to be served consecutive to count 1. On count 3, unlawful taking or driving of a vehicle, the trial court imposed one-third the middle term doubled for a total of 16 months, also to be served consecutive to count 1. Factual Background During the early morning hours of May 30, 2020, appellant approached two men with his fists raised as they were putting trash in the dumpster of a car dealership in Oxnard. When the